Bombay High Court
Yashpal Mahindrapal Sonik vs State on 18 March, 1987
Equivalent citations: 1987(3)BOMCR387
JUDGMENT G.D. Kamat, J.
1. In sessions Case No. 10 of 1986, the appellant has been convicted for the offence under section 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "the Act") and sentenced to undergo ten years of rigorous imprisonment and a fine in the sum of Rs. 1 lakh and in default of the payment of fine to undergo further imprisonment for two years. Being aggrieved by this conviction, he has approached this Court in appeal challenging the same.
2. The charge against the appellant is that on 24th February, 1986, at 8.45 hours at Chapora when the police party checked one house the appellant was found in possession of 3.300 kgs. of charas worth Rs. 16,500/- without any valid document and that is how he was tried for being in possession of the narcotic drugs under section 20(b) of the Act.
3. In support of the prosecution case three witnesses have been examined, P.W. 1 Shaikh Usman who is about 20 years of age is admittedly a homeguard and is attending a night school. In his statement he deposes that he was called by the Mapusa police and taken to Chapora in the morning of 24th February, 1986, alongwith/another panch and some police person personnel. He mentions that Dy. S.P. Deelip Kumar (P.W. 3) was also in the raiding party and their mission was to apprehend drug pedlars in Chapora area. As he reached alongwith others at Chapora, they saw the accused with a wooden bag covered with blue cloth and talking to a local person. At this time, P.S.I. Teli from Calangute Police Station also joined the raiding party. Since the appellant raised some suspicion. Head Constable Dessai was asked to follow him. The appellant went along a katcha road and, thereafter, entered on house having two rooms. This information was given to the raiding party by Head Constable Dessia and, accordingly, a raid was conducted. There three inmates in the house out of whom the appellant was one. According to this witness, the suitcase which he had earlier found in the hands of the appellant with a blue cloth cover was lying on the floor of the room. One of the Police Officers entered the house and he asked the appellant to open the bag. On opening the bag some clothes were removed and when the bag was checked on tapping it created different sounds. The suspicion was that the bag had some hidden compartments. Accordingly, the accused was directed to open the bag and it was then discovered that in three different spaces charas of the total weight of 3.300 kgs. had been stored in that bag. The police soon attached the same under a panchanama and sealed them. However, sample of the seized charas weighing about 50 gms. was separately sealed. This witness also proved the panchanama dated 24-2-1986 made by the police with regard to the seizure of the charas.
4. The next witness is P.W. 2, Mahesh Kaissare, an Assistant Chemist in the Directorate of Health Services, Government of Goa, Daman and Diu and works as Assistant for Food and Drugs in the same Directorate. His qualifications are that he is B. Pharm and is familiar with tests and analysis of foods and drugs. He mentioned that on 4th March, 1986, he received a letter from P.S.I. Gaonkar, Calangute Police Station with a sample covered in a brown paper for test and identification of the substance. Accordingly, he did the analysis and came to the conclusion on the basis of extraction of resin from the substance by bean acid test and by microscopic examination that the substance is charas. Accordingly, he prepared a report which he identified as the report forwarded by him in compliance with the request of the Police Officer which is marked at Exhibit P.W. 2/A. The last witness examined on behalf of the prosecution is Deelip Kumar (P.W. 3) who was at the relevant time Dy. Superintendent of Police attached to Mapusa Police Station. He mentions that on 24th February, 1986, he had gone to chapora alongwith some of his subordinates, their intention being to conduct raids on persons indulging in drugs trafficking. He further mentions that the subordinates who accompanied him are P.S.I. Gaonkar, two Head Constables Kerkar and Dessai and two panch witnesses. P.S.I. Teli joined them at Chapora. On reaching Chapora at about 8 a.m. when they were at the market they noticed a man holding in his hand a bag of the shape of a suitcase with light blue colour cloth cover talking to a local man and that he suspected him to be a drug pedlar. He, therefore, asked Head Constable Dessai to follow him and soon Dessai came and gave information that the man holding the bag hed gone inside a house. That man is identified to be the appellant by this witness. When they went and knocked at the door of the house there were three inmates, including the appellant, and on search being conducted on their bodies nothing was found. He, accordingly, ordered his subordinates to ask the appellant to open is bag which was lying in the room just on the left side of a person entering that room. P.S.I. Teli asked the accused to open the bag and when it was opened several clothes were discovered. When P.S.I. Teli tapped the same at some places hollow sound was made whereas at other place some different sound was found to be coming. This gave rise to suspicion which made the police ask the accused to remove the planks of the box. Once the planks were removed they found benefit the planks many sticks of a substance wrapped in green cellophane paper. According to this witness, these many sticks were nothing but charas and as a result a panchanama was soon made weighing all the sticks after removing them from three hidden spaces of that bag. Some sticks of the weight of about 50 grams were separated to be sent to the Chemical Analyser and the remaining were put in another bundle duly sealed and signatures of the panch were obtained.
6. The appellant in support of his case examined on Shivdas B. Naik (D.W. 1) who put up a story that the appellant had been working for him in his restaurant at Vagator. This Shivdas Naik says that he accompanied the appellant as the appellant mentioned to him that he had a friend at Caisua knowing Chinese cooking. According to the witness, he was intending to start Chinese dishes in h is restaurant at Vagator. It is for this reason that he had accompanied the appellant to Caisua and while he was buying cigarette the appellant entered a house and when the witness went to the house he saw that police were taking searches and found some substances, etc. This witness also further mentions that the appellant was carrying no bag whatsoever in hands when he had accompanied him in the morning of 24-2-11986.
7. Based on the prosecution evidence and on rejection of the defence, the learned Sessions Judge on a proper evaluation and marshalling of the evidence made the conviction and convicted him with the minimum sentence as provided for in section 20(b)(iii) of the Act.
8. Mr. M.B. D'Costa, the learned Counsel for the appellant, has taken several objections in the appeal to the conviction made by the learned Sessions Judge. According to him, having regard to the several aspects of the matter, the appellant was entitled to the benefit of doubt and, therefore, he ought to have been acquitted.
9. He urges that, in all, the prosecution has examined only three witness, viz. Shaikh Usman (P.W. 41) who is a panch, secondly the Chemical Analyser and thirdly, the Dy. Superintendent of Police and considering this set of persons there is no independent witness examined in support of the prosecution case and, therefore, according to him, the prosecution evidence must be viewed with greater caution. His grievance is that once the prosecution itself accepts that the appellant was taking to a local person in the market at Chapora, it was incumbent upon the prosecution to have examined that local person and that having not been done, a cloud is cast on the prosecution story.
10. We, however, see no merit in what is urged by Mr. D'Costa. It has been rightly held by the learned Sessions Judge that by the prosecution evidence it has been suggested that the appellant had merely a talk in the market with local man and thereafter the appellant proceeded to the house where he was apprehended and, therefore, that local person is not a material witness. Admittedly, that local person is not connected in any manner with the seizure of charas and, therefore, we fail to understand as to how non-examination of that local person as a witness can cast any slur on the prosecution.
11. In his next submission Mr. D'Costa says that P.W. 1 is a student besides being in the homeguards. In that he points out that Homeguard organisation is a sort of a parallel police force and that way P.W. 1 can be said to be connected with the police. The evidence of P.W. 1 must therefore, be taken with great caution if not rejected outright. His further grievance is that P.W. 1 being a student ought not to have been taken as a panch witness apart form the fact that he remains homeguard. Relying upon sub-section (4) of section 100 of the Cri.P.C., he points out that in the matter of search the search witness must be from very locality in which the search is sought to be made and they must be respectable persons. He, therefore, questions the prosecution as to why a man from Mapusa, that too a student and belonging to the Homeguards organisation should at all be taken to Chapora. Mr. D'Costa naturally mentions this aspect of the matter to further contend that this panch witness P.W. 1 is a doubtful man manageable by the police who is bound to support their version and viewed thus his evidence is unreliable. He further urges that there are discrepancies in his evidence and the same is otherwise liable to be rejected.
12. In support of the proposition that respectable persons from the locality must be employed as search witnesses by the police during the investigation of any crime, he relies upon the decision of the Kerala High Court in the case of State of Kerala v. Joseph, 1963(2) Cri.L.J. 454. In this case, a witness was taken by the police from a different locality. On the facts of the case, it was found that witness had been formerly on several occasions employed by the chalakudy police in connection with the investigation of a number of cases. The recovery spoken to in that case was also from an open space which was full people. In the context of the peculiar facts of that case, no reliance was placed on that search witness. No doubt, the Kerala High Court laid down proposition that courts are bound to attach the greatest importance to the evidence of panch witnesses, and in order that the Court should attach such importance to panch witnesses it is essential that panch witnesses should be independent witnesses unbiased and without being in any way under the control of the police or people who are liable to be liable in the hands of the police and amenable to the influence of the police or who could be looked upon as agents of the police and in which case their evidence ought not to be relied upon.
13. Next is the decision of the Kerala High Court in A.P. Kuttan Panicker v. State of Kerala, 1963(1) Cri.L.J. 669 wherein para 29 dealing with searches and search witnesses, it is observed that when respectable neighbours of the locality are available to witness the search, people from distance are not to be taken to conduct searches and when people from distant places are taken for conducting searches, a door is left open for the charge that such persons are prompted by desire to be easily persuaded to support the story of the prosecution which they might put forward.
14. There can be no doubt with regard to what is being laid down by these authorities and as general propositions we fully agree with them. But the fact, however, remains that in the present case P.W. 1 is not a school kid who could be said to be a person pliable in the hands of the police and amenable to them to support their version blindly. He is 20 year old man does who night schooling but his main calling is that he is a homeguard. It is common knowledge that the homeguards have nothing to do with the police department. The apart, there is not even a suggestion made to P.W. 1 that he is a regular panch witness of the Mapusa police or that he had obliged the police in searches before. If this be the case, it is impossible to accept the argument at this stage in appeal that merely because P.W. 1 is a homeguard his evidence ought not to be accepted. Secondly, there is not even a slur cast on him in the cross-examination that he is not a respectable person and hence it is not possible for us to hold that merely because P.W. 1 was taken from Mapusa as a search witness for conducting the raid on drug pedlars or drug traffickers we are bound to discard his evidence. No case has been made out to put in doubt the evidence of P.W. 1.
15. Next it has been contended by Mr. D'Costa that the prosecution case must fail on the identification firstly of the appellant and secondly of the bag from which the charas is purported to have been apprehended. With regard to the identification of the appellant, be points out that P.W. 1 at the beginning of his examination-in-chief did not mention that the accused was carrying bag in his hands when he was first discovered in the market of Chapora while talking to a local person and he made that statement but much later and that too not with clarity. Referring to the evidence of P.W. 3 he mentions that it is not clear as to whether the accused opened the door or the accused was merely sitting in the room and was not found in the hands of the accused when the police forced their entry into the house at Chapora. Referring to the evidence of P.W. 1 and P.W. 3 he further mentions that there is nothing on record to clearly establish that the bag from which finally the charas was apprehended is the bag belonging to the appellant and this being the position, according to the learned Counsel, the prosecution must be held not to have discharged the onus that the accused was in possession of narcotic drugs and, therefore, this case must fall.
16. There is again no merit in the contention of Mr. D'Costa inasmuch as from the evidence on record we are satisfied that the identity of the appellant is established without any doubt as also the identity of the bag.
We will at once come to that part of the evidence which clearly establishes this. P.W. 1 in his examination-in-chief on describing as to how they reached Chapora and discovered the appellant talking to a local man says :
"The accused was holding a suitcase with a cloth cover of blue colour in his hand. I want to clarify that when I first saw the accused in the market, he was only holding in his hand the suitcase. The suitcase was lying on the ground in the room."
P.W. 3 Deelip Kumar says in his evidence that they noticed the appellant holding a box in his hand with the shape of a suitcase with a cloth cover of light blue colour speaking to a local man and when Head Constable Dessai told them that he had already gone to a house, the police party went to that house and when the door was opened the same box was found in the room on the left hand side as one enters that room. He further mentions thus :
"I noticed that the same box that we had seen in the hands of the accused was lying in the room just on the left of a person entering the door of the room."
In his cross-examination he mentions :
"The said box was not standing on its narrow edge but on its flat wide bottom. The handle of the box was facing the accused ................................................. there were other boxes and bags. The boxes were similar to the attached one but smaller."
17. Having regard to this evidence of P.W. 1 and P.W. 3 in relation to the box which is like a suitcase, we are clearly of the opinion that the same has been duly identified as being the same box which was in the hands of appellant when he was first discovered in the market at Chapora while talking to a local man. There is enough material on record from the evidence of P.W. 1 and P.W. 3 that the appellant is the same person who was first found in Chapors market with the box which was discovered in the house when he was followed by the Head constable Dessai and discovered by the raiding party. Therefore, there can be no dispute with regard to his identity. Mr. D'Costa, however, insisted that it is not clear as to who opened the door when the police knocked at the house. According to him, there are two versions of the police one saying that the appellant was seated just opposite the door while the other mentioning that he opened the door. On this point, we have scanned the evidence on record. When the door was opened the appellant was near the door. There is a statement that the appellant was found seated when the door had been opened. But, however, there is no discrepancy whatsoever because at what point of time he was seated is not clear. Even assuming that there is a discrepancy, it is not possible to accept that this discrepancy is that material or vital casting doubt on the seizure of charas and viewed thus it does not affect the prosecution story.
18. Mr. D'Costa strenuously urged that even though the bag is discovered no possession of charas from the person of the appellant is proved. We are, however, not again with him on this point. Section 54 of the Act speaks of statutory presumption. The presumption of possession spoken to in this section is that in all trials, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV with regard to any of the drugs described therein when he is not able to account for his possession or fails to account for his possession satisfactorily. The fact remain that the bag or box which was found in his hands earlier was the same which was discovered at the house in which he entered and the same was discovered or apprehended no sooner the appellant effected entry into the house. Once the identity of the bag is established as held earlier, in our view, it is clear that the possession of narcotic drugs is established and, therefore, this argument must fail.
19. Mr. D'Costa then argues that there is no evidence produced by the prosecution about the ownership of the house from which the charas was discovered or who had rented it out. He naturally points out this to suggest that there were two more persons in that house and this being so it is his contention that merely because the appellant was found in that house he could not be charged for having been in possession of charas. We do not think that we need to dilate on this subject any further. The question as to who rented that house and to whom that house belongs is not necessary to find out inasmuch as we held earlier that the bag which was in the hands of the appellant was identified and once that very bag was recovered from the house where the appellant was present the question as to whom the house belongs or who rented it out does not came into play and it was not necessary for the prosecution to have by any stretch of imagination led evidence on that subject. We may, however, make a mention because it has come in evidence of P.W. 3 that there are cases filed even against the other inmates from whom separate recoveries of objectionable substances were made and they have been tried separately.
20. Mr. Bhobe, the learned Public Prosecutor, rightly read several passages of evidence before us to show as to how the prosecution has driven home the charge and how the conviction is sustainable against the appellant. He also mentions having regard to the authorities that the only requirement is that the panch witness must be a respectable person. He then says that nothing is shown with regard to P.W. 1 that he is not a respectable person and, therefore, no slur could be cast on the prosecution. We fully agree with him. The learned Public Prosecutor points out that the appellant who claims to be from Himachal Pradesh did not produce any cogent evidence that he was employed as a cook by P.W. 1 and accompanied him to chapora to meet his friend who knew Chinese cuisine to be employed in the restaurant of P.W. 1. We fully agree with Mr. Bhobe. The evidence of P.W. 1 is nothing but an afterthought seeking to extricate the appellant from the charge made against him. There was no foundation laid for such defence and the evidence of P.W. 1 is not trustworthy and the attempt is to show that he did not carry any bag. If the appellant had been a cook, credible evidence could have been brought. The defence evidence is of no avail to the appellant.
21. In the result, the appeal fails and the same is liable to be dismissed. However, under section 20(b)(ii) of the Act, the learned Sessions Judge convicted the appellant and sentenced him to ten years' rigorous imprisonment and a fine of Rs. 1 lakh is the minimum punishment provided under the Act. But, however, we find that default imprisonment for two years is harsh considering the substantive sentence of ten years. We, therefore, modify the order of learned Sessions Judge to substitute one year instead of two years in default of payment of fine and to that extent the order stand modified. Appeal, accordingly dismissed.